dddd
PublishedMarch 31, 2015

A Quick Update on Commil v. Cisco

Oral argument in Commil v. Cisco was held this morning. You can get the transcript here, and read all of the briefs here. I’m speaking on a panel about the case this afternoon at American University.

Here’s a quick summary: Commil is a patent troll that sued Cisco for inducing infringement of its patent that Commil claimed covered the Bluetooth standard. Cisco lost at trial. On appeal, Cisco argued that it should have been allowed to present evidence that it believed in good faith that Commil’s patent was invalid. The Federal Circuit agreed, and Commil petitioned the Supreme Court to review. You can read a more detailed summary on the DisCo blog.

The Justices seemed pretty skeptical of the arguments from Commil and the SG’s office. One point that several Justices pressed (and that we made in our amicus brief) was that inducement is an additional thing on top of direct infringement:

JUSTICE SCALIA: Well, you have a cause of action against the person who infringes, right? And it doesn’t matter whether he thinks the patent is invalid or not. You you got that person, don’t you? So this is sort of a supplemental cause of action against against somebody who induces, who aids and abets.

The big focus of the Justices, however, was the lack of a difference between a good faith belief of non-infringement and a good faith belief of invalidity:

JUSTICE KAGAN: Now, GlobalTech says that I have a good faith defense as to noninfringement, but you’re suggesting I don’t have that good faith defense as to invalidity. And I guess I don’t understand quite why that would make sense in the context that I’m talking about, which I think is a pretty typical context. But it would seem that the two defenses are so intertwined and so two sides of the same coin that they should be treated in the same way.

And in an exchange with the SG:

JUSTICE GINSBURG: I hope you’ll spend — concentrate on that because that’s the crux of this case. I mean, that’s what the Federal circuit majority said, that there’s no princip[led] difference between the two. And if you could make sure that you if you think there is a princip[led] difference, tell us what it is.

Neither Commil nor the SG had an answer that the Justices seemed satisfied with.

My initial take is that this went well for Cisco, but, of course, you never know. As someone once said, “Predictions are hard, especially about the future.”

Matt Levy

Previously, Matt was patent counsel at the Computer & Communications Industry Association

More Posts

Study Confirms That PREVAIL Act, Patent Office ANPRM Proposals Will Hurt the Economy

A study from the Perryman Group – an economic and financial analysis firm based in Waco, Texas – confirmed that proposals contained in both the United States Patent and Trademark Office’s (USPTO...

“Clear Abuse of Discretion” Leads to New Venue Precedent

In late October, the Fifth Circuit Court of Appeals reversed a decision by the District Court for the Western District of Texas that blocked TikTok Inc.’s request to move a patent infringement suit ...

Correcting the Record on the PREVAIL Act

Earlier this month, the Senate Judiciary Subcommittee on Intellectual Property held a hearing to discuss Reforming the Patent Trial and Appeal Board – The PREVAIL Act and Proposals to Promote U.S. I...

Subscribe to Patent Progress

No spam. Unsubscribe anytime.